Published on 4 October 2021

FIRST SECTION

Application no. 62466/19 K.G. and S.G. against Poland lodged on 4 December 2019 communicated on 16 September 2021

STATEMENT OF FACTS

The applicants, Ms K. G. (“the first applicant”) and S. G. (“the second applicant”) are a mother and son. They are Russian nationals of Chechen origin. They were born in 1984 and 2017 respectively and currently live in Russia. They are represented before the Court by Ms I. Hnasevych, of the Halina Nieć Legal Aid Center in Cracow.

The facts of the case, as submitted by the applicants, may be summarised as follows.

In 2016 the first applicant fled from Russia to Turkey because of the alleged persecution relating to her brother’s involvement in the rebellion movements in Chechnya. Whist in Turkey she had a relationship with a Syrian national and became pregnant. She left Turkey for Poland (via Moscow) in 2017 due to alleged threats from her partner. She arrived in Poland on 16 July 2017 and instituted proceedings for refugee status. When those proceedings were ongoing the applicants left Poland for Germany on two occasions.

On 4 December 2019 the Court decided not to indicate to the Government of Poland, under Rule 39 of the Rules of the Court, the interim measure which the applicants had sought to ensure that they would not be removed from Poland.

On 5 December 2019 the Polish authorities deported the applicants to Russia.

(a) Proceedings for refugee status

On 16 July 2017 the first applicant applied for refugee status in Poland. Subsequently, she fled to Germany where the second applicant was born.

On 11 August 2017 the Head of the Aliens Office ( Szef Urzędu do Spraw Cudzoziemców ) discontinued the proceedings on the grounds that the first applicant had left Poland.

On 7 May 2018 the applicants were transferred back to Poland from Germany and placed in the Biała Podlaska guarded facility for foreigners. The proceedings for refugee status were resumed.

On 13 December 2018 the applicants left the guarded centre and again fled to Germany.

On 31 December 2018 the Head of the Aliens Office decided not to grant the applicants refugee status and refused their application for subsidiary protection. The first applicant’s statements relating to her alleged persecution in Chechnya were found to be unsubstantiated. As regards her statements that if she was sent back to Russia her life would be in danger on account of premarital pregnancy and that she would risk falling victim to an honour crime, it was noted that there were no obstacles for her return to Russia. She had the option of an internal relocation within Russia, so she did not necessarily have to settle in Chechnya.

The first applicant did not appeal against this decision. She submits not being aware that the decision was issued as she had already left Poland.

On 4 March 2019 the applicants were again transferred from Germany back to Poland.

On 19 June 2019 the applicants requested the Council for Refugees ( Rada do Spraw Uchodźców ) to declare the decision of 31 December 2018 null and void. The request was dismissed on 30 August 2019. It was noted that the applicant failed to appeal against the first-instance decision within the prescribed time-limit.

On 21 November 2019 the Council for Refugees refused to reconsider the case. It appears that the applicants failed to appeal to the Regional Administrative Court.

(b) Proceedings for international protection

On 29 August 2019 the first applicant lodged a new request for international protection. She submitted that her son’s father had died, and she could face danger from his family, who allegedly blamed her for his death. On 17 September 2019 the Head of the Office of Aliens declared the request inadmissible. It was noted that the applicants relied on the same grounds as in the proceedings for refugee status. On 21 November 2019 the Council for Refugees dismissed the applicant’s appeal.

(c) Decisions obliging the applicants to leave Poland

On 5 March 2019 the Chief Commandant of the Border Guard in Åšwiecko issued a decision obliging the applicants to leave Poland and banning them from re-entering Poland and other Schengen countries for one year.

This decision was upheld on 18 June 2019 by the Head of the Office of Aliens. It was noted that the applicants had illegally crossed the Polish ‑ German border in 2017 and in 2018 and there were no grounds to grant them international protection or humanitarian stay. Moreover, prior to her arrival in Poland, the first applicant had travelled between Turkey and Russia without any problems. She had never been a member of any organisation or political party and had never been persecuted. As regards the alleged political activity of her brother, her submissions were not credible. Her removal would not be in breach of Articles 3 or 8 of the Convention.

On 12 August 2019 the Regional Administrative Court refused to stay the execution of the decision of 18 June 2019.

On 24 September 2019 the Regional Administrative Court dismissed the applicants’ appeal.

On 18 November 2019 the applicants lodged a cassation appeal with the Supreme Administrative Court. It appears that the proceedings are pending.

(d) The applicants’ administrative detention

On 5 March 2019 the Słubice District Court ordered the applicants’ detention in a guarded facility for foreigners.

The detention was subsequently extended by the Biała-Podlaska District Court on 26 March, 28 June, 23 August, 26 September and 25 November 2019. The court held that administrative detention was necessary, since the applicants had previously fled Poland for Germany.

The first applicant unsuccessfully appealed against each extension and argued that the district court had failed to consider the situation of the second applicant and protect his rights and freedoms guaranteed by the Convention. In her appeals she relied on the conclusions of the expert psychologists’ opinions and the case-law of the Court. She also submitted that she had friends in Poland who were ready to lodge her and her child in their home.

(e) Psychological opinions

On 12 June 2018 an expert psychologist issued an opinion according to which the first applicant suffered from post-traumatic stress disorder, depression, insomnia and an eating disorder. It was not recommended to keep her in detention, which posed a risk to her life and health and could have a negative impact on her child.

On 21 October 2019 another expert psychologist (K.K.) issued an opinion concerning the first applicant. The expert stated that the applicant’s emotional state had worsened in the detention centre and recommended her urgent release. He recommended psychological and pharmaceutical treatment and stressed that her placement in the detention centre posed a risk to her health.

On 22 October 2019, the expert psychologist, K.K. issued an opinion concerning the second applicant. The expert found that the stay in a guarded centre had a negative impact on the boy’s development. It had caused him stress and might cause a developmental disorder. The child’s continued stay in the centre posed a risk to his health and development.

The relevant international law and relevant domestic law and practice are set out in the judgment in the cases of Bistieva and Others v. Poland , no. 75157/14, §§ 34-42, 10 April 2018, and Bilalova and Others v. Poland , no. 23685/14, §§29-34, 26 March 2020.

COMPLAINTS

The applicants complain under Article 5 § 1 (f) of the Convention that their administrative detention was not in accordance with the law. They stress that the first applicant suffers from post-traumatic stress disorder and therefore they should have remained at liberty. Moreover, the detention was not necessary in respect of the second applicant, a baby, for whom it was a traumatic experience.

They also complain under Article 8 of the Convention that their detention in a guarded centre for aliens constituted a disproportionate measure in relation to their private and family life.

QUESTIONS TO THE PARTIES

In so far as the applicants were committed to the Guarded Centre for Aliens from 5 March to 5 December 2019:

(i) Was the applicants’ deprivation of liberty in compliance with Article 5 § 1 (f) of the Convention? Reference is made to the first applicant’s health condition and the second applicant’s young age (compare R.M. and Others v. France , no. 33201/11, 12 July 2016).

(ii) Has there been a violation of the applicants’ right to respect for their private and family life, contrary to Article 8 of the Convention?